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DECISIONS THIS WEEK
February 15, 2016
Dear Friends,

We are very excited to share with you a recent landmark ruling from Kenya, Okuta v. Attorney General, which declared criminal defamation unconstitutional. ARTICLE 19 Kenya, directed by Henry Maina, Columbia Global Freedom of Expression expert, was one of three petitioners alleging that section 194 of the Penal Code was a disproportionate and unjustifiable limitation of freedom of expression. The Court drew heavily from international law and referenced the landmark case of Lohé Issa Konaté v. The Republic of Burkina Faso from the African Court on Human and Peoples’ Rights. This builds on rulings from Zimbabwe which decriminalized defamation not once but twice, first under the former and then under the current constitution. The first ruling, Madanhire v. Attorney General, was so significant that it won Columbia’s Global Freedom of Expression Prize in 2015.
Decisions This Week

We have a case from Canada dismissing a claim for a worldwide interim libel injunction against Google Inc. reasoning that since snippets, hyperlinks and URLs are automatically generated in the search results, they do not constitute publication. From Germany we have an important judgment which found that an airport had violated a protester’s freedom of expression with its effective "ban" on the distribution of anti-deportation leaflets at the airport.
Global Jurisprudence in Focus

This week's theme is Protests in Public Spaces. From the anti-corruption protests in Romania, to the Women’s Marches around the globe, to the anti-immigration ban demonstrations at American airports, citizens internationally are making their voices heard and freedom of assembly laws are being tested. We selected cases from Hungary, Singapore and the United States to show how different jurisdictions have dealt with the right to protest in public spaces.     

Africa

Kenya

Okuta v. Attorney General
Decision Date: February 6, 2017
The High Court of Kenya declared the offence of criminal defamation under section 194 of the Kenyan Penal Code to be unconstitutional. Two Kenyan nationals were charged with criminal defamation for statements made on a Facebook page. They subsequently challenged the constitutionality of the offence, which carried the maximum penalty of two years' imprisonment. In a groundbreaking ruling, the High Court of Kenya declared that section 194 was unconstitutional as it was a disproportionate limitation on the right to freedom of expression. The Court concluded that the invocation of criminal defamation for the purpose of protecting a personal reputation was “clearly excessive and patently disproportionate” and that there was an alternative civil remedy for defamation.
 

Nigeria

Unemployed Youths Initiative v. Code of Conduct Bureau
Decision Date: November 4, 2016
The Federal High Court of Nigeria dismissed a claim by the Unemployed Youths Initiative for access to public records because it lacked the necessary standing to sue. The local organization sought a judicial order requesting the Code of Conduct Bureau, an anti-corruption agency set up by the Federal Government of Nigeria, to provide the written declarations of assets and liabilities submitted by public officials. The Court held that based on its reading of the Initiative’s certificate of registration, and an affidavit of its objective to empower disadvantaged youths, the organization failed to prove the existence of a specific legal right or interest in bringing the action, which is required under Nigerian case law.  Accordingly, the High Court of Nigeria dismissed the action for lack of jurisdiction in the absence of the Initiative’s legal standing to seek a judicial declaration against the Code of Conduct Bureau.

North America

Canada

Niemela v. Google Inc.
Decision Date: June 16, 2015
The Supreme Court of British Columbia dismissed a claim for a worldwide interim libel injunction against Google Inc. by a Vancouver lawyer and entered summary judgment for Google on the whole action. Glenn Niemela sued Google for defamation and sought an injunction to block 146 defamatory URLs from its global search engine, Google.com, the company having voluntarily agreed to remove the search results from its Canadian platform, Google.ca. Drawing on Canadian and U.K. case law to evaluate whether Google was a publisher of the URLs, the Court applied the “passive instrument test” which requires knowing involvement in the selection of the published words. The court dismissed the defamation claim reasoning that since snippets like hyperlinks and URLS are automatically generated in the search results, they do not constitute publication, and therefore Google was only a passive instrument. Applying a strict test, the court found insufficient evidence to support the additional claim of irreparable harm because 90% of the searches for Niemala’s name came from Canadian IP addresses where the impugned URLs were already delisted. Furthermore, the Court was reluctant to issue an order that could not be complied with since Google.com is incorporated in the U.S. where two federal statutes protect internet providers and block enforcement orders that would infringe on the First Amendment right to free speech.

Europe

Germany

Ms. K v. Germany, BverfG, Judgment of the First Senate
Decision Date: February 22, 2011
The German Federal Constitutional Court, overturning lower court decisions, found that an Airport had violated Ms. K's freedom of expression and freedom of association rights with its effective "ban" on the distribution of anti-deportation leaflets at the Airport. Ms. K was a member of an activist group which had distributed the materials at check-in counters, without the Airport's approval, to protest private airlines assisting in the deportation of foreigners.  The Court observed that, although the Airport operated as a stock corporation, the state owned majority shares in the Airport and was therefore bound to conduct itself as an organ of the state and protect citizen’s constitutional rights.  In assessing Ms. K's freedom of assembly right, the court found areas intended for public gatherings or traffic, even if privately owned, are areas subject to assembly rights and since Ms. K’s actions did not threaten the safety or efficiency of operations, the interference was not proportionate. The Court concluded that by threatening criminal proceedings against the protesters should they violate the "ban", the Airport violated Article 5.1 (Freedom of Expression) and Article 8.1 (Freedom of Association) of the German 'Basic Law' which sets out constitutional rights for German citizens.

Global Jurisprudence in Focus: 
Protests in Public Spaces

 

Hungary

Tatar v. Hungary
Decision Date: September 12, 2012
The European Court of Human Rights found that a Hungarian statute imposing fines on “illegal assembly” was not necessary in a democratic society and, accordingly, constituted a breach of the applicants’ right to freedom of expression.  József Tatár and Károly Fáber were prosecuted and fined in Hungary under a domestic statute prohibiting “illegal assembly” after they hung dirty laundry on a fence surrounding Hungary’s parliamentary building, intending the action to represent an airing of the government’s “dirty laundry.” The Court determined that the incident in question (two people hanging dirty laundry on a government fence for thirteen minutes) primarily constituted an “association,” which is protected under the freedom of association provision. Under European case law, an “association” like an “assembly” constitutes a specific forum for the communication of ideas and are thus afforded the same protections.
 

Singapore

Public Prosecutor v. Roy Ngerng
Decision Date: October 7, 2015
A court of Singapore found Ngerng and five other protest participants guilty of “public nuisance” and organizing a demonstration without approval. Singaporean blogger and activist Roy Ngerng organized a demonstration in a public park to demand the government make changes to the compulsory savings plan. Prior to the protest, the group obtained permission from the Commissioner of Parks and Trees to give a “speech” in the park. Ngerng and his co-organizers allegedly refused to use an adjoining lawn of the park at the request of government officials, preferring to join demonstrators gathering at a nearby location. The court held that the permit obtained by Ngerng was granted for a specific purpose and that the demonstration was not covered by the permit. Ngerng was sentenced to pay a fine.
 

United States

Hodge v. Talkin
Decision Date: August 28, 2015
The Court of Appeals for the District of Columbia Circuit, reversing a district court’s judgment, ruled that the Supreme Court plaza is a non-public forum and that a statute limiting expressive conduct in the plaza was reasonable in serving the government’s legitimate interests. The legitimate interests were described as “maintaining the decorum and order befitting courthouses generally and the nation’s highest court in particular” and promoting “the appearance and actuality of [the] Court whose deliberations are immune to public opinion and invulnerable to public pressure.” College student Harold Hodge, standing in the  U.S. Supreme Court plaza 100 feet away from the building’s front doors, had held a sign that read: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” After refusing to leave the plaza, a police officer arrested Hodge for violating a federal law which prohibits the display of “a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement” in the building or grounds around the Supreme Court. The Court concluded that the plaza is a non-public forum for purposes of the First Amendment analysis. 
 
For more Information on freedom of assembly, see the list of 53 cases in the Global Freedom of Expression database on Freedom of Association and Assembly/Protests.  
Columbia Global Freedom of Expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an inter-connected global community with major common challenges to address. 

 
For comments or inquiries please email us at globalfreespeech@columbia.edu 
Copyright © 2017 Columbia Global Freedom of Expression, All rights reserved.


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